Tommy Barge v. State , 348 Ga. App. 619 ( 2019 )

SECOND DIVISION
MILLER, P. J.,
BROWN and GOSS, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 12, 2019
In the Court of Appeals of Georgia
A18A1956. KELLY v. THE STATE.
A18A2030. BARGE v. THE STATE.
BROWN, Judge.
In these consolidated appeals, Rashawn Kelly and Tommy Barge assert that
insufficient evidence supports their convictions. For the reasons explained below, we
find that sufficient evidence supports Kelly’s convictions of possession with intent
to distribute marijuana (two counts), possession of hydrocodone, and possession of
methylone. Based upon the State’s failure to present sufficient evidence of a nexus
between Barge’s commission of a predicate act and an intent to further gang activity,
we reverse Barge’s conviction for criminal gang activity.1
1
Barge does not contend in this appeal that insufficient evidence supports his
remaining conviction of possession with intent to distribute.
When evaluating a challenge to the sufficiency of the evidence, we view
all of the evidence admitted at trial in the light most favorable to the
prosecution and ask whether any rational trier of fact could have found
the defendant guilty beyond a reasonable doubt of the crimes of which
he was convicted. This evaluation essentially addresses whether the
government’s case was so lacking that it should not have even been
submitted to the jury. Our limited review leaves to the jury the
resolution of conflicts in the evidence, the weight of the evidence, the
credibility of witnesses, and reasonable inferences to be made from
basic facts to ultimate facts.
(Citations and punctuation omitted.) McGruder v. State, 303 Ga. 588, 590 (II) (814
SE2d 293) (2018). So viewed, the record shows that a narcotics investigator received
information on January 23, 2013, from an anonymous source on a tipline that vehicles
were parking in front of a residence owned by defendant Kelly’s mother for a brief
period of time and leaving after a young man emerged from the house and some type
of exchange took place with the occupants of the vehicles. Based upon the
investigator’s knowledge that this was a common method to distribute drugs, the
officer collected trash abandoned at the curb of the home, searched it, and discovered
green leafy material, stems, and seeds that tested positive for marijuana, small plastic
jeweler’s bags commonly used to sell small amounts of marijuana, as well as a
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hospital wristband dated January 19, 2013, and a prescription bottle filled in 2009,
both bearing Kelly’s name.
Based upon the items found in the trash, the investigator obtained a search
warrant for the residence of Kelly’s mother. In the sole closet of a bedroom that Kelly
shared with his 14-year-old brother, the police officers found green leafy material in
small ziplock jeweler’s bags placed in a blue plastic container, and a metal tea box
containing more marijuana. They also located a “pay-owe log” underneath the queen-
sized mattress in the same bedroom, and inside the night stand drawer, they found a
digital scale with green leafy material on it that was disguised to look like a cell
phone, as well as a cell phone provider receipt with Kelly’s name and a date of
January 27, 2013. Finally, they discovered a prescription bottle containing
acetaminophen-codeine elixir2 listing the name of Ryanne Hensley. Kelly was not
present at the time the search was conducted, and no names appear on the pay-owe
log.
The police investigation revealed no connection between defendant Barge and
the residence owned by Kelly’s mother. The room shared by Kelly and his brother
2
A GBI crime lab employee testified that this elixir tested positive for
hydrocodone.
3
contained a twin bed and a queen bed, with the queen bed used by Kelly. While the
investigator observed some “red clothing in the room where the evidence was found,”
the anonymous tip contained no information about gang affiliation or red clothing.
Based upon the evidence found during the execution of the search warrant, the
narcotics investigator obtained an arrest warrant for Kelly charging him with
possession of marijuana with the intent to distribute and possession of the codeine
elixir. On February 15, 2013, a sheriff’s deputy was conducting surveillance of
Barge’s residence in Loganville, Georgia when he saw Kelly arrive in a vehicle with
two women. The deputy knew that Kelly had warrants for his arrest based upon a
search of his home, and called for back-up. After Kelly went inside the house, the
officers decided to approach. When Kelly and Barge ran out the back, they were
stopped by two deputies stationed outside the back door. Kelly was carrying a green
backpack and Barge was carrying a black one.
During a patdown search of Kelly, a deputy found three bags containing green
leafy material in his jacket pocket, two white methylone capsules in the change
pocket of his pants, “a wad of cash,” and a red bandana in his right back pocket. In
the green backpack, the deputy discovered another bag containing 1.5 ounces of
marijuana, small jeweler’s bags, some cigar blunt wrappers, and another red bandana.
4
Inside the black backpack carried by Barge, the deputies found two bags of
marijuana, rounds of ammunition, as well as a red bandana, a scale, and several small
plastic baggies. A police officer testified that the individual packaging of the
marijuana found in Kelly’s jacket, along with the other items found in his green
backpack, were “some indication of possession with intent” to distribute.
On the same day that Kelly and Barge were arrested, the police applied for and
obtained a search warrant for Barge’s residence. A search of Barge’s room revealed
a black digital scale, several small baggies, three red hats, red gloves, a five-pointed
red star on a red-beaded necklace, two pairs of red shoes, and a black pellet gun.
The State presented a Gwinnett County police officer assigned to the gang unit
at the time of the offenses at issue as an expert in criminal street gangs. The expert
testified that Kelly and Barge had both been affiliated with the Bloods street gang, a
national gang with various sects that had existed in Gwinnett County for at least 12
years. In his expert opinion, Kelly and Barge were leaders of the “G-Shine Bloods,”
a sect within the “East Coast Blood gangs.” With regard to Barge, the expert testified
that he documented his association with four other G-Shine Bloods. The expert
explained that Bloods are associated with the color red, wearing a red bandana on the
right side of their body, and identify themselves as a member of the gang by wearing
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red clothing, such as a red Chicago Bulls hat, red jewelry or a five-pointed star, by
using certain hand signs and symbols, and through the use of tattoos. East Coast
Bloods “are well-known for drug sales and drug distribution,” and gang members
promote their position in a gang by “[p]ortraying a certain image, whether it be that
you’re wealthy, that you have power or influence.” He testified that in December
2012, a couple of months before Kelly and Barge were arrested, he reviewed their
Facebook pages. Barge’s page included multiple photos depicting him with a red
bandana draped over his head or neck while making a Blood gang hand sign. Another
photo showed a Chicago Bulls hat and 11 bills of cash spread out on top of a red
bandana; the expert opined that this photograph “basically stat[ed] that they’re
making money and they’re paying homage to the gang by placing the money on the
paraphernalia associated with the gang.” A photo showing Kelly and Barge throwing
Blood gang hand signs appeared on both men’s Facebook pages. According to the
expert, a person who falsely claims or “flags” that they are a member of a gang “could
result in [him] getting violated, and that can encompass anything from a very bad
beating to death.”
Barge testified that he posted the gang-related photos on his Facebook page to
stop getting bullied and attacked in his neighborhood. He also admitted that he wore
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a bandana “when I’m going to places where I feel like I’m in danger or threatened.”
He stated that the photograph of the money and Chicago Bulls hat lying on top of the
red bandana meant that he was getting money and protected by the Bloods. He
explained that he “didn’t care” about the risk “if anybody real finds out that I’m not
a real Blood” because he had “to protect myself on a daily basis” in the
neighborhood. He denied ever hearing the term “G-Shine Blood” or being an actual
member of a gang. He admitted that he was smoking marijuana in the back yard
immediately before he and Kelly were arrested, but denied that he was wearing the
black backpack or that the marijuana found inside it belonged to him.
Kelly admitted in his testimony at trial that he was asked to hold the marijuana
found in the bedroom closet for a cousin that was about to be incarcerated, as well as
the liquid codeine elixir. He claimed that he had permission to smoke the marijuana
and had no plans to sell it. He denied all knowledge of the ledger and digital scale
found in the bedroom. He also claimed that he no longer lived in the bedroom at his
mother’s house at the time of the search. With regard to the marijuana found on his
person and in his backpack at the time of his arrest, he also asserted that it was for
personal use. He denied being a member of the G-Shine Blood gang, testifying that
after he and Barge were teased and assaulted, they placed the pictures on Facebook
7
to create the illusion that they were gang members as a means of protection. After he
pretended to be a member of the gang, the bullying “stopped drastically.”
1. In Case No. A18A1956, Kelly asserts that insufficient evidence supports his
convictions. Based upon the evidence outlined above, we conclude that the State met
its burden of proof under the standard set forth in Jackson v. Virginia, 443 U.S. 307
(99 SCt 2781, 61 LE2d 560) (1979). While Kelly denied that he intended to distribute
the marijuana, the jury was entitled to disbelieve his testimony and conclude from the
packaging of the marijuana, the empty jeweler’s bags, and the officer’s testimony that
the packaging provided evidence of intent to distribute, as well as the location of the
digital scale, pay-owe log, and recent cell phone receipt in the bedroom, that Kelly
had the requisite intent to distribute. See Horne v. State, 318 Ga. App. 484, 486-487
(1) (733 SE2d 487) (2012) (packing of contraband can demonstrate it is held for
distribution); White v. State, 310 Ga. App. 386, 389 (2) (a) (714 SE2d 31) (2011)
(jury entitled to disbelieve testimony that contraband belonged to another). With
regard to the possession counts, Kelly’s admission that he was holding the
hydrocodone and methylone for another amply supports his convictions on those
counts.
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2. In Case No. A18A2030, Barge contends that insufficient evidence supports
his conviction of criminal gang activity. Assuming, without deciding, that sufficient
evidence shows that Barge actively participated in an illicit street gang, the State
failed to present evidence showing a sufficient nexus between Barge’s commission
of a predicate act and an intent to further the gang activity. See Rodriguez v. State,
284 Ga. 803, 807 (1) (671 SE2d 497) (2009).
“[T]he State was required to prove something more than the mere commission
of a crime by gang members.” (Citation and punctuation omitted.) In the Interest of
W. B., 342 Ga. App. 277, 281 (801 SE2d 595) (2017). “[I]t is essential that the State
demonstrate that the commission of the predicate act was intended to further the
interests of the gang.” (Citation and punctuation omitted.) Id. at 281-282. As we have
previously explained,
This requirement is satisfied by evidence that the gang received the
proceeds from or otherwise benefitted from the commission of a
particular crime. Evidence showing that a crime was done in retaliation
for some act or insult committed against the gang or its members will
also serve to show that the crime furthered the gang’s interests.
Additionally, Georgia courts have previously held that evidence
showing that the crime was committed in a highly visible manner so as
to allow witnesses and victims to discover that a particular gang
committed the crime, or evidence that the purpose of the crime was to
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establish, reinforce, or enhance the gang’s reputation satisfies the nexus
requirement. This requirement is also satisfied where the State shows
that gang members referenced a particular incident on social media so
as to establish that the gang was responsible for a specific crime, either
for the purpose of enhancing the gang’s reputation or intimidating
others. And evidence, including social media posts, that a specific gang
member perpetrated the crimes so as to promote himself within the gang
hierarchy would also suffice to prove the required nexus.
(Citations and punctuation omitted.) Id. at 282.
Here, the indictment alleged that Barge participated in criminal gang activity
on February 15, 2013, by possessing marijuana with the intent to distribute it. The
evidence upon which the State relies to show a nexus between Barge’s possession of
the marijuana concealed in his backpack and an intent to further the gang activity is
that he and Kelly were “‘repping’” their gang at the time they possessed the drugs
because Kelly was wearing a red bandana in his right back pocket and Barge had a
red bandana inside the backpack he carried. The State also points to the expert’s
testimony that East Coast Bloods “are well-known for drug sales and drug
distribution” and gang members promote their position in a gang by “[p]ortraying a
certain image, whether it be that you’re wealthy, [or] that you have power or
influence.”
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This evidence fails to satisfy the State’s burden. While Kelly might have been
“repping” the gang generally by wearing the red bandana in his pocket, there was no
evidence that he or Barge possessed or distributed the marijuana in a highly visible
manner or that they referenced this particular crime on social media to enhance the
gang’s reputation. The expert’s testimony about the East Coast Bloods’ general
reputation for drug sales and distribution also provides insufficient evidence that this
particular transaction furthered the interests of the gang. See Interest of W. B., 342
Ga. App. at 278-279, 283 (finding insufficient evidence of nexus between burglary
and intent to further gang activity even though expert witness testified that gang was
known to engage in burglaries). Accordingly, we reverse Barge’s conviction for
criminal gang activity. See id.
Judgment affirmed in Case No. A18A1956 . Judgment reversed in Case No.
A18A2030. Miller, P. J., and Goss, J., concur.
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